ITLOS: Wolfrum's Statement to the General Assembly

On Monday, December 10th, International Tribunal for the Law of the Sea President Rüdiger Wolfrum addressed the General Assembly on its agenda item "oceans and the law of the sea." (Statement here; ITLOS press release here; UN meeting report here.) Judge Wolfrum's statement, for the most part, recited, in the standard fashion of such addresses, the activities of the Tribunal during the past year. He reserved for the last part of his talk, interestingly, a discussion of why the Tribunal should be the preferred dispute resolution mechanism of parties to the Law of the Sea Convention and other international agreements. The ITLOS is hardly swamped with business, and clearly Judge Wolfrum is attempting to convince States to send their disputes to the Tribunal and not to its competitor fora, such as the International Court of Justice and arbitration. I'll have more to say about competition in international adjudication next week once I post an essay of mine that is forthcoming in the Virginia Journal of International Law. For now, here's the relevant excerpt from Judge Wolfrum's statement:

. . . The choice of procedure under article 287 of the Convention is of particular relevance as, apart from the Tribunal, there are two other compulsory procedures under the Convention, namely, the International Court of Justice and arbitration (Annexes VII and VIII). The default procedure is, however, arbitration. This explains why the provisional measures cases the Tribunal has dealt with under article 290, paragraph 5, of the Convention were the subject of subsequent proceedings before Annex VII arbitral tribunals. I refer to the Southern Bluefin Tuna cases, the MOX Plant case and the Land Reclamation case. In respect of these cases, the Tribunal has not only made a significant contribution to the development of environmental law but has also assisted the parties in resolving their differences. In this regard, allow me to quote from an article published by the distinguished Professor J.G. Merrills that [I quote] “it is clear that in all three cases the main substantive contribution came not from the Annex VII tribunal, supposedly there to determine the merits, but rather from ITLOS, exercising its incidental jurisdiction” [end of quote] [J.G. Merrills, The Mosaic of International Dispute Settlement Procedures: Complementary or Contradictory?, NILR, LIV (2007), pp. 361-393, at p. 381.]

Compared with an arbitral tribunal constituted to deal with a specific case, the Tribunal, as a permanent institution, has the advantage of ensuring consistency in the development of a coherent corpus of jurisprudence. May I add that, in my view, harmonization of international jurisprudence may be achieved only through permanent courts and tribunals. This should be borne in mind when States make their declarations on the choice of dispute settlement under article 287 of the Convention. In this respect, I should like to note that in 2007 one State Party, Trinidad and Tobago, made a declaration under article 287 by which it chose, in order of priority, the International Tribunal for the Law of the Sea and the International Court of Justice.

It may also be useful to observe that parties have the option for their dispute to be heard before an ad hoc special chamber, in accordance with article 15, paragraph 2, of the Statute. Parties may choose any of the 21 judges to sit in the chamber and may also appoint judges ad hoc if the chamber does not include a member of the nationality of the parties. Parties may also propose modifications and additions to the Rules of the Tribunal. Furthermore, parties do not have to bear the costs of proceedings. Indeed, access to the Tribunal and its facilities is not subject to any fees and is free to States Parties. Likewise, the remuneration of judges and Registry staff members is financed through the regular budget of the Tribunal and not by the parties to the dispute. This is particularly advantageous when all the costs relating to the functioning of an arbitral tribunal are taken into consideration (remuneration of arbitrators, registrar and registry staff members, rental of premises, and translation and interpretation services).

I should explain that the jurisdiction of the Tribunal is not limited to issues concerning the United Nations Convention on the Law of the Sea and that there are other possibilities which States Parties may use to confer jurisdiction upon it. A dispute may be brought before the Tribunal on the basis of any international agreement related to the purposes of the Convention which specifically confers jurisdiction on the Tribunal. A number of agreements have been concluded which contain provisions stipulating that disputes arising out of the interpretation or application of these agreements could be submitted to the Tribunal. A well-known example of such an agreement is the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks of 1995. It is worth noting that this Agreement extends mutatis mutandis the mechanism contained in Part XV of the Convention to any dispute between States Parties to this Agreement – whether or not they are also parties to the Law of the Sea Convention.

Recently, in May 2007, a new convention, the Nairobi International Convention on the Removal of Wrecks, was adopted at a diplomatic conference organized by the International Maritime Organization. This convention also contains a dispute-settlement clause that refers to Part XV of the Law of the Sea Convention. The inclusion of jurisdictional clauses of this nature is a useful development and I am therefore thankful to the sponsors of the draft resolution for having noted that States Parties to an international agreement related to the purposes of the Convention may submit to the Tribunal any dispute concerning the interpretation or application of that agreement which is submitted to it in accordance therewith.

Provisions conferring jurisdiction on the Tribunal may also be included in bilateral agreements. The Tribunal is the natural choice for States parties when they conclude a treaty relating to law of the sea matters, such as the laying of pipelines, the conservation and management of fisheries resources, marine scientific research, and the management of joint exploitation zones. In the case of agreements concluded by the European Community, the Tribunal is, in fact, the only permanent court available to the parties to the dispute.

Mr President, the Tribunal is thus prepared to discharge the functions entrusted to it by the Convention. . . .

Resolutions of Ratification: Tax Treaties with Belgium and Germany

On Friday, December 14, the Senate, by the requisite two-thirds vote of members present, agreed to the resolutions of advice and consent to ratification of: the Convention between the Government of the United States of America and the Government of the Kingdom of Belgium for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income, and accompanying Protocol, signed at Brussels on November 27, 2006 (Treaty Doc. 110-3); and the Protocol Amending the Convention between the United States of America and the Federal Republic of Germany for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income and Capital and to Certain Other Taxes, signed at Berlin on June 1, 2006 and an Exchange of Notes dated August 17, 2006 (Treaty Doc. 109-20). The resolutions of ratification contained no reservations, understandings, or declarations. The Senate Foreign Relations Committee favorably reported the treaties on October 31, following a hearing on July 17. The Committee submitted its reports on November 14.

Ndiaye & Wolfrum: Mensah Festschrift

Tafsir Malick Ndiaye (Judge, International Tribunal for the Law of the Sea) & Rüdiger Wolfrum (Judge, International Tribunal for the Law of the Sea) have published Law of the Sea, Environmental Law and Settlement of Disputes: Liber Amicorum Judge Thomas A. Mensah (Martinus Nijhoff Publishers 2007). Contents include:

• R.P. Anand, Towards a new universal international law: an Asian perspective
• Laurence Boisson de Chazournes, Precaution in international law: reflections on its composite nature
• Jutta Brunnée, International law and collective concerns: reflections on the responsibility project
• Malgosia Fitzmaurice, The European Convention on Human Rights and Fundamental Freedoms and the Human Right to a Clean Environment: the English perspective
• M.C.W. Pinto, Some thoughts on the treatment of inter-governmental organizations and their personnel
• C.F. Amerasinghe, Reflections on the judicial function of international law
• Anthony Aust, Peaceful settlement of disputes: a proliferation problem?
• Julio Barboza, Provisional measures, or the dangers of being too exceptional
• L. Yves Fortier, Entre l’arbre et l’ecorce (between a rock and a hard place): can international commercial arbitration deliver on environmental disputes?
• Philippe Gautier, Environmental damage and the United Nations Claims Commission: new directions for future international environmental cases?
• Maurice Kamto, Considerations actuelles sur l’inexecution des decisions de la Cour internationale de Justice
• Vaughan Lowe, The interplay between negotiation and litigation in international dispute settlement
• Tafsir Malick Ndiaye, La recevabilite devant les jurisdictions internationals
• Francisco Orrego Vicuña, New issues in the settlement of disputes on international investments: the global reach of the role of dispute settlement
• Philippe Sands, Litigating environmental disputes: courts, tribunals and the progressive development of international environmental law
• Arthur Watts, Preparation for international litigation
• Rüdiger Wolfrum, Taking and assessing evidence in international adjudication
• Michael Wood, The selection of candidates for international judicial office: recent practice
• Alan Boyle & Christine Chinkin, UNCLOS III and the process of international law-making
• Jean-Pierre Cot, The law of the sea and the margin of appreciation
• Edgar Gold, Fair treatment of seafarers in the event of a maritime accident: new international guidelines
• Manos Jacobson, Uniform application of the international regime on liability and compensation for oil pollution damage
• A.L. Kolodkin, Y.V. Bobrova, & G.G. Shinkaretskaia, Peaceful uses of the seas in the light of new challenges and threats
• Djamchid Momtaz, La Convention sur la protection du patrimoine culturel subaquatique
• Proshanto K. Mukherjee, The penal law of ship-source marine pollution: selected issues in perspective
• Myron H. Nordquist, International law governing places of refuge for tankers threatening pollution of coastal environments
• Peter H. Sand, Public trusteeship for the oceans
• Louis Savadogo, La Charte africaine des transports maritimes: principes, regles et techniques
• Budislav Vukas, Sea boundary delimitation and internal waters
• Sam Bateman, The regime of the exclusive economic zone: military activities and the need for compromise?
• Hugo Caminos, Categories of international straits excluded from the transit passage regime under part III of the United Nations Convention on the Law of the Sea
• Andree Kirchner, The outer continental shelf: background and current developments
• Rainer Lagoni, Offshore bunkering in the exclusive economic zone
• W. Michael Reisman & Mahnoush H. Arsanjani, Some reflections on the effect of artisanal fishing on maritime boundary delimitation
• Betsy Baker, States parties and the Commission on the Limits of the Continental Shelf
• Rosalie Balkin, The rise and rise of IMO’s liability and compensation regimes
• Agustin Blanco-Bazán, Suppressing unlawful acts: IMO incursion in the field of criminal law
• William Edeson, Article XIV of the FAO Constitution, international legal personality and the Indian Ocean Tuna Commission
• Moritaka Hayashi, Regional fisheries management organizations and non-members
• Doris König, The EU directive on ship-source pollution and on the introduction of penalties for infringements: development or breach of international law?
• Julian Roberts & Martin Tsamenyi, The regulation of navigation under international law: a tool for protecting sensitive marine environments
• Tullio Treves, Some international law aspects of the use of vessel monitoring systems for preventing illegal unreported unregulated fishing
• Jon M. Van Dyke, Allocating fish across jurisdictions
• David Anderson, Article 283 of the United Nations Convention on the Law of the Sea
• Nisuke Ando, The southern bluefin tuna case and dispute settlement under the United Nations Convention of the Law of the Sea: a Japanese perspective
• P. Chandrasekhara Rao, Delimitation disputes under the United Nations Convention on the Law of the Sea : settlement procedures
• Robin Churchill, From port to court state? International litigation as a possible weapon to combat sub-standard ships
• Barbara Kwiatkowska, The 2006 Barbados/Trinidad and Tabago maritime delimitation (jurisdiction and merits) award
• L.D.M. Nelson, The jurisprudence of the International Tribunal for the Law of the Sea: some observations
• Shabtai Rosenne, Arbitrations under Annex VII of the United Nations Convention on the Law of the Sea
• Donald R. Rothwell, The contribution of the ITLOS to oceans governance through marine environmental dispute resolution
• Michael White, Prompt release cases in ITLOS
• Charles E. Di Lea, International approaches to global environmental challenges
• Christine Domince, The iron Rhine arbitration and the emergence of a principle of general international law
• David Freestone, The establishment, role, and evolution of the global environment facility: operationalising common but differentiated responsibility?
• Mojtaba Kazazi, The UNCC follow-up programme for environmental awards
• Alexandre Kiss & Dinah Shelton Strict liability in international environmental law
• Anthony Amos Lucky, The interest of Caribbean states in the nuclear age: with specific reference to Trinidad and Tabago
• W. Paatii Ofosu-Amaah, Reflections on developing countries’ role in negotiating the pre-Rio Conference environment-related treaties: a proposal of action for enhancing their role and effectiveness

Bellinger: Lecture on International Dispute Resolution at the World Legal Forum

We noted earlier this week, the speech John B. Bellinger, III (Legal Adviser, U.S. Department of State) delivered at the Oxford Prisoners in War conference on Monday. Earlier that same day, in The Hague, Bellinger delivered a lecture on international dispute resolution at the World Legal Forum. Here's an excerpt:

The United States has particular reasons to seek peaceful and effective international dispute settlement. Few if any international disputes do not have an impact on our security, humanitarian, and economic interests. Thus, we rely heavily on international institutions and international law to find peaceful and effective resolutions to conflicts and disagreements.

But we also believe that successful dispute resolution requires that states be active and politically engaged in seeking a settlement. That is where I want to focus my remarks today. It is not enough to turn over a problem to international organizations and hope that after a time, a solution will emerge. Such formal resolution mechanisms have a vital role to play, and can be a decisive factor in resolving disputes. But especially in the most serious crises, there is no substitute for the application of political will and energy by states.

With respect to dispute resolution mechanisms, the United States has typically taken a pragmatic approach—using such mechanisms where they fit the problem and can advance the parties toward a resolution. Moreover, no one mechanism of dispute resolution is inherently superior to another. The United States has made use of a wide range of mechanisms—some within existing institutional frameworks, others wholly ad hoc—to try to address the critical peace and security problems of our time. In this respect, we have wholeheartedly embraced the perspective of Article 33 of the UN Charter, which suggests an array of resolution mechanisms to disputing parties.

Consistent with this approach, the United States has resorted to international courts and tribunals where they are likely to be most effective—for example, where they are tasked with enforcing a fairly specific set of obligations. This is evident in the United States’ strong support for the World Trade Organization, which has a dispute settlement mechanism tailored to address trade issues. In the last dozen years, the US and the EU have managed to resolve a number of trade disputes through the WTO—some affecting critical industries and involving billions of dollars, without resort to a damaging trade war.

Courts or tribunals can also be tailored to address specific political or security problems. Indeed, the very act of establishing a tribunal can take a particular issue off the table and make resolution of a broader dispute easier. The Iran-US Claims Tribunal, based here in The Hague, was created as part of an arrangement that resolved a major crisis and led to the release of the U.S. hostages. In a different vein, the Permanent Court of Arbitration, also here in The Hague, has provided a mechanism for states to reduce conflict by allowing resolution of disputes on an ad hoc basis.

More recently, the United States has firmly backed the Special Tribunal created, in accordance with UN Security Council Resolution 1757, to bring to justice those responsible for the murder of former Lebanese Prime Minister Rafik Hariri and others. Although deference to a state’s internal legal process is the norm, this was a case where that process was itself subverted by threats of violence and terrorism. We strongly hope that the Tribunal will ultimately punish those responsible for the assassinations and put to rest the resulting civil discord. And we also owe a note of thanks to the Dutch, who have kindly agreed to host the Special Tribunal.

By contrast, we have found it more difficult to reach political consensus for a single tribunal covering all manner of international law disputes. The International Court of Justice was meant to serve as the ultimate arbiter of most international law issues affecting the UN Charter. Although it has not achieved this lofty and difficult aspiration, we believe the court can play a constructive role in resolving international disputes. To be sure, the United States—like many countries—does not accept the mandatory jurisdiction of the ICJ. But we have nevertheless turned to the ICJ to address a number of disputes, including a longstanding boundary issue with Canada and Iran’s takeover of our embassy in Tehran in 1979. These cases allowed the ICJ to do what it does best: resolve a concrete dispute in light of well-developed international law.

We believe, however, that some look to courts and tribunals for more than they realistically can deliver, because they somehow regard them as the most authentic source of international law. Efforts to lure international courts and tribunals into choppier political waters can often prove embarrassing to those bodies. Justice Holmes of our Supreme Court once said, “Great cases, like hard cases, make bad law.” This is especially true of inherently political cases, which can strain the legitimacy of international legal institutions and undermine the capacity of those institutions to contribute to effective dispute settlement. A notable example is the ICJ’s advisory opinion process, which allows the court to opine on matters without full participation by all disputing parties and tends to cast the court in the role of arbitrating political conflict.

Despite these concerns, the United States believes that an effective ICJ is invaluable to advancing the rule of law and encouraging the peaceful settlement of international disputes. That commitment is evident in the Avena case, which President Bush has determined to enforce by instructing our states to provide new hearings to the 51 foreign nationals covered by the ICJ
order. This has been deeply controversial in the affected states, and there has been strong resistance to the President’s actions. But we remain committed to complying with the ruling, and have asked our Supreme Court to give full effect to the President’s decision.

But I want to leave international courts and tribunals to the side for now, and focus my remaining time on other mechanisms of dispute settlement. Most international disputes do not end up in court. Instead, they are managed by the international community, and often resolved, through many other formal and informal mechanisms. One such mechanism is the process of consultation and confidence-building that can prevent mutual suspicion from developing into full blown disputes. Another is the ongoing monitoring and negotiation, which can help resolve a dispute that has already taken concrete shape. The distinctions between these mechanisms of dispute settlement are not always clean: a single international institution might engage in each of these forms of dispute settlement, depending on the nature of the problem. But we believe these various mechanisms are different tools in the lawyer and policymaker’s toolbox, and which one is best typically depends on the problem to be solved. . . .

International disputes can be handled through formal or informal frameworks of negotiation and mediation. The United States supports many organizations that offer formal frameworks for resolving disputes at an early stage. US border issues with Canada and Mexico have long been managed by international commissions, which address not only issues related to the actual borders, but also water use, navigation, and environmental disputes. In addition, the United States has supported the work of the NAFTA Free Trade Commission in addressing trade-related disputes through non-binding mechanisms before those disputes reach arbitration.

But we believe that informal negotiation and mediation—where states must engage and real political effort must be expended—are often the best way to address the most serious international disputes. Such disputes never invite neat solutions, and effective settlement is mainly a political problem. . . .

In closing, I wish to reiterate that the United States is firmly committed to UN Charter principles for resolving international disputes peacefully. We are not wedded to any particular theory of how that should be done. Instead, we believe in a pragmatic approach, and believe in the need to rely upon whatever mechanism can best reduce, manage, or resolve disputes. International law—the Charter in particular, with its purpose of “maintain[ing] international peace and security”—expects states to do exactly this.

Terris, Romano, & Swigart: The International Judge: An Introduction to the Men and Women Who Decide the World's Cases

Daniel Terris (Brandeis Univ. - International Center for Ethics, Justice, and Public Life ), Cesare P.R. Romano (Loyola Law School Los Angeles), & Leigh Swigart (Brandeis Univ. - International Center for Ethics, Justice, and Public Life) have published The International Judge: An Introduction to the Men and Women Who Decide the World’s Cases (Brandeis Univ. Press & Oxford Univ. Press 2007). Here's the abstract:

Over the last century, international courts, once reserved for arcane matters of diplomacy and trade, have begun to address a broad range of human experience and activity. This volume corrects some of the common misperceptions about international judges, while providing a balanced introduction to both the strengths and shortcomings of their work. As they rule on crucial issues of war and peace, human rights, and trade, in addition to high-profile criminal trials, international judges are playing a critical role in developments that will affect world affairs for years to come.

Based on interviews with more than 30 international judges, this volume is the first comprehensive portrait of the men and women in this new global profession. The working environment of international judges is closely examined in courts around the world, highlighting the challenge of carrying out work in multiple languages, in the context of intricate bureaucratic hierarchies, and with a necessary interdependence between judges and their courts' administration. Arguing that international judges have to balance their responsibilities as interpreters of the law and as global professionals, the authors discuss the challenges of working in the fluid circumstances of international courts. Profiles of five individual judges provide insight into the experience and dilemmas of the men and women on the international bench.

Weissbrodt & de la Vega: International Human Rights Law: An Introduction

David Weissbrodt (Univ. of Minnesota - Law) & Connie de la Vega (Univ. of San Francisco - Law) have published International Human Rights Law: An Introduction (Univ. of Pennsylvania Press 2007). This is another volume in the series Pennsylvania Studies in Human Rights. Here's the abstract:

For more than half a century, the world community has sought to codify a series of fundamental precepts intended to prevent such abuses of human rights as torture, discrimination, starvation, and forced eviction. The United Nations, other international organizations, regional institutions, and governments have developed various procedures for protecting against and providing remedies for human rights violations.

International Human Rights Law is a comprehensive introductory treatise, intended for all concerned about this critical area of international law, including students, lawyers, other advocates, teachers, and academics. The book comprises three sections: an overview of the development of human rights as a domain of international law; a collection of brief summaries of each of the rights specified in the Universal Declaration of Human Rights and other critical human rights instruments; and a review of the national, regional, and international procedures for implementing human rights precepts.

The overview traces the history of human rights, from early philosophical and religious ideas and theories of natural law to modern formulations. The second section contains concise summaries of the substantive principles of and practices relevant to self-determination, equality, life, slavery, torture, fair trial, detention, privacy, health, food, housing, and clothing, as well as emerging rights such as sustainable development, environmental health, peace, and security from terrorism. A final section describes UN human rights procedures (both Charter-based and treaty-based); criminal procedures; African, European, inter-American, and other regional systems; national institutions and processes, truth and reconciliation commissions, and nongovernmental organizations. Throughout, example cases are cited, and each chapter concludes with a list of the most useful print and web resources.

Hurrell: On Global Order: Power, Values, and the Constitution of International Society

Andrew Hurrell (Univ. of Oxford - Politics & International Relations) has published On Global Order: Power, Values, and the Constitution of International Society (Oxford Univ. Press 2007). Here's the abstract:

How is the world organized politically? How should it be organized? What forms of political organization are required to deal with such global challenges as climate change, terrorism or nuclear proliferation? Drawing on work in international law, international relations and global governance, this book provides a clear and wide-ranging introduction to the analysis of global political order--how patterns of governance and institutionalization in world politics have already changed; what the most important challenges are; and what the way forward might look like.

The first section develops three analytical frameworks: a world of sovereign states capable of only limited cooperation; a world of ever-denser international institutions embodying the idea of an international community; and a world in which global governance moves beyond the state and into the realms of markets, civil society and networks. Part II examines five of the most important issues facing contemporary international society: nationalism and the politics of identity; human rights and democracy; war, violence and collective security; the ecological challenge; and the management of economic globalization in a highly unequal world. Part III considers the idea of an emerging multi-regional system; and the picture of global order built around US empire. The conclusion looks at the normative implications. If international society has indeed been changing in the ways discussed in this book, what ought we to do? And, still more crucially, who is the 'we' that is to be at the centre of this drive to create a morally better world?

This book is concerned with the fate of international society in an era of globalization and the ability of the inherited society of sovereign states to provide a practically viable and normatively acceptable framework for global political order. It lays particular emphasis on the different forms of global inequality and the problems of legitimacy that these create and on the
challenges posed by cultural diversity and value conflict.

Romano: Can You Hear Me Now? Making the Case for Extending the International Judicial Network

Cesare P.R. Romano (Loyola Law School Los Angeles) has posted Can You Hear Me Now? Making the Case for Extending the International Judicial Network. Here's the abstract:

The paper is divided in four parts. The chosen approach to justice is holistic, touching on all its main aspects and encompassing not only the international level but also the domestic one. In the first part, some fundamental logical and philosophical concepts are sketched.

The first idea is that every legal system necessitates a judicial system, for only courts of law can credibly dispense justice. If the international legal system aspires to be a legal order (i.e. a community based on the rule of law, a social order where everyone is subject to laws and they are enforced impartially), it ought to be endowed with courts.

The second is that, existence of international courts notwithstanding, the primary responsibility to dispense justice is at the national level. The international level is only subsidiary (albeit it has a reason to be of its own). It is only a second-best, a safety net to ensure that if justice cannot be done nationally, there might be a further remedy.

The third idea we propose is that justice is not a unitary concept but the aggregation of three separate notions: distributive, corrective and retributive justice. Since progress has been uneven along these three dimensions, disaggregating the unitary concept makes it possible to better appreciate how far humanity has or has not progressed towards ensuring that effective justice is available to all.

In the second part, we review progress made to date internationally along these three dimensions. We will see that while no progress has been made on the distributive justice front, much has been done for retributive justice and even more for corrective justice.

The third part identifies challenges, gaps and failures that require study and action. First, while we stress the importance to ensure justice is done at the national level, we will see how often the primary dispenser of justice might fail. We will then analyze the subsidiary international network, and we will point out six reasons why the emerging international judicial network falls short of a judicial order, the main reason being that availability and acceptance of jurisdiction of international courts and tribunals varies greatly across the globe.

The final part will attempt to sketch a strategy to foster the growth of judicial systems that can ensure that justice is available to all. We deliberately decided to set aims high, so as to provide a general sense of direction towards which progress can and should be made rather than a step-by-step guide. It is a grand strategy rather than a tactical plan, but, nonetheless, some immediately implementable ideas have also been provided.

ICJ: Territorial and Maritime Dispute (Nicaragua v. Colombia)

Today, the International Court of Justice delivered its judgment on the preliminary objections raised by Colombia in the case concerning Territorial and Maritime Dispute (Nicaragua v. Colombia). Judgment here; summary here; press release here. The dispute pertains to sovereignty over territory (islands and other maritime features) and the course of the maritime boundary between the parties. In its judgment, the Court upheld Colombia's preliminary objections insofar as they pertained to the Court's jurisdiction concerning the sovereignty over the islands of San Andrés, Providencia, and Santa Catalina. The Court found that a 1928 treaty between the parties had resolved that issue. That treaty, however, did not resolve issues concerning sovereignty over other maritime features or the maritime delimitation between the parties. On those matters, the Court found that it had jurisdiction on the basis of the Pact of Bogotá. As a result, the Court decided that it need not determine whether it also had jurisdiction under Article 36(2) of its Statute.

Here's the dispositif:

(1) As regards the first preliminary objection to jurisdiction raised by the Republic of Colombia on the basis of Articles VI and XXXIV of the Pact of Bogotá:

(a) By thirteen votes to four, Upholds the objection to its jurisdiction in so far as it concerns sovereignty over the islands of San Andrés, Providencia and Santa Catalina;

(b) Unanimously, Rejects the objection to its jurisdiction in so far as it concerns sovereignty over the other maritime features in dispute between the Parties;

(c) Unanimously, Rejects the objection to its jurisdiction in so far as it concerns the maritime delimitation between the Parties;

(2) As regards the second preliminary objection to jurisdiction raised by the Republic of Colombia relating to the declarations made by the Parties recognizing the compulsory jurisdiction of the Court:

(a) By fourteen votes to three, Upholds the objection to its jurisdiction in so far as it concerns sovereignty over the islands of San Andrés, Providencia and Santa Catalina;

(b) By sixteen votes to one, Finds that it is not necessary to examine the objection to its jurisdiction in so far as it concerns sovereignty over the other maritime features in dispute between the Parties and the maritime delimitation between the Parties;

(3) As regards the jurisdiction of the Court,

(a) Unanimously, Finds that it has jurisdiction, on the basis of Article XXXI of the Pact of Bogotá, to adjudicate upon the dispute concerning sovereignty over the maritime features claimed by the Parties other than the islands of San Andrés, Providencia and Santa Catalina;

(b) Unanimously, Finds that it has jurisdiction, on the basis of Article XXXI of the Pact of Bogotá, to adjudicate upon the dispute concerning the maritime delimitation between the Parties.

Vice-President Al-Khasawneh appended a dissenting opinion to the judgment of the Court; Judge Ranjeva appended a separate opinion; Judges Parra-Aranguren, Simma, and Tomka appended declarations; Judge Abraham appended a separate opinion; Judge Keith appended a declaration; Judge Bennouna appended a dissenting opinion; and Judge ad hoc Gaja appended a declaration.

U.S. Ratification of the Hague Convention on Intercountry Adoption

Today, the United States deposited its instrument of ratification for the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption. (New York Times story here; NPR story here.) President Bush signed the instrument of ratification on November 16. The Senate had provided its advice and consent to ratification on September 20, 2000. The Convention is implemented by the Intercountry Adoption Act and Department of State and Department of Homeland Security regulations. Implementation also required extensive work with state officials, as noted by the State Department spokesperson at today's press briefing. (For more complete background, see the Department of State Bureau of Consular Affairs website.) According to the State Department, "The Convention establishes international norms and procedures for intercountry adoption cases with other Hague Convention members. It mandates safeguards to protect the interests of children, birth parents, and adoptive parents. It also provides that member nations recognize adoptions that take place within other Hague Convention countries." The Convention will go into force for the United States on April 1, 2008.

Guzman: How International Law Works: A Rational Choice Theory

Andrew Guzman (Univ. of California, Berkeley - Law) has published How International Law Works: A Rational Choice Theory (Oxford Univ. Press 2007). Here's the abstract:

Though appeals to international law have grown ever more central to international disputes and international relations, there is no well-developed, comprehensive theory of how international law shapes policy outcomes.

Filling a conspicuous gap in the literature on international law, Andrew T. Guzman builds a coherent theory from the ground up and applies it to the foundations of the international legal system. Using tools from across the social sciences Guzman deploys a rational choice methodology to explain how a legal system can succeed in the absence of coercive enforcement. He demonstrates how even rational and selfish states are motivated by concerns about reciprocal non-compliance, retaliation, and reputation to comply with their international legal commitments.

Contradicting the conventional view of the subject among international legal scholars, Guzman argues that the primary sources of international commitment - formal treaties, customary international law, soft law, and even international norms - must be understood as various points on a spectrum of commitment rather than wholly distinct legal structures.

Taking a rigorous and theoretically sound look at international law, How International Works provides an in-depth, thoroughgoing guide to the complexities of international law, offers guidance to those managing relations among nations, and helps us to understand when we can look to international law to resolve problems, and when we must accept that we live in an anarchic world in which some issues can be resolved only through politics.

Cole: Climate Change and Collective Action

Daniel H. Cole (Indiana Univ., Indianapolis - Law) has posted Climate Change and Collective Action. Here's the abstract:

Climate change may present the greatest collective action problem the international community has ever confronted. The unequal distribution of expected costs and benefits from climate change creates different incentives for different countries, and those countries can be expected to bargain in their own perceived interests. That is the reason the Kyoto Protocol turned out to be weak and seriously flawed (in stark contrast to the Montreal Protocol on protection the ozone layer). Collective action problems continue to impede efforts to replace or improve on Kyoto. Policy recommendations and negotiating strategies that ignore those problems are likely to prove ineffective.

This paper explains how Kyoto's notorious weaknesses are rooted in unresolved collective action problems, and offers two recommendations for ameliorating those problems. Policy makers should incorporate into their cost-benefit calculations: (1) low-probability, high-magnitude climate 'catastrophes,' which could affect any or all countries; and (2) the secondary effects of climate change, including potential threats to national security. Due consideration of potential catastrophic impacts and secondary effects of climate change should better align the interests of the parties and ameliorate collective-action impediments to a stronger, more effective international climate change regime. At the very least, it should raise the lowest common denominator of the parties.

Bellinger: Prisoners in War: Contemporary Challenges to the Geneva Conventions

John B. Bellinger, III (Legal Adviser, U.S. Department of State) gave a speech at the University of Oxford on Monday on Prisoners in War: Contemporary Challenges to the Geneva Conventions. He concluded:

As we move forward then, I hope I have demonstrated that Common Article 3 and other applicable international legal rules do not answer important questions related to both the initiation and termination of detention in armed conflict with transnational terrorist groups. While there may be a range of reasonable policy answers, none are dictated by international law. I hope that the scholarly debate in this area will move beyond assertions that all that is needed is better implementation of existing law, and instead work will begin in earnest on addressing the difficult challenges I have identified. It is very easy for all of us to agree that the fight against transnational terrorism must be conducted in accordance with the rule of law, but it is much harder to say what the law exactly is, and how it should be applied in this context. As I continue my dialogue with other governments, I will continue to encourage them to work towards a common approach in dealing with these issues.

Duncan Hollis comments at Opinio Juris.

ICTY: Trial Chamber Judgment in Case Against Milošević

Today, the ICTY Trial Chamber rendered its judgment in the case (No. IT-98-29/1) against former general of the Bosnian Serb Army Dragomir Milošević. Milošević was charged (amended indictment here) with seven counts - four of crimes against humanity (murder, inhumane acts) and three of war crimes (terror, unlawful attacks on civilians) - related to the shelling and sniping against civilians during the siege of Sarajevo from August 10, 1994, to on or about November 21, 1995. Milošević's trial began on January 11, 2007; closing arguments were given on October 9 and 10, 2007.

In today's decision (summary here; press release here; judgment not yet available online), the Trial Chamber found Milošević guilty of four counts of crimes against humanity (two counts each of murder and inhumane acts) and one count of war crimes (terror). The court dismissed two counts of war crimes (unlawful attacks against civilians) because Milošević was convicted on the terror charge. The Tribunal's summary notes, in part:

The evidence discloses an horrific tale of the encirclement and entrapment of a city over a period of approximately 15 months and its bombardment by the forces of the Sarajevo-Romanija Corps, also known as the SRK, under the command of General Dragomir Milošević, the Accused. In many places, the SRK positions overlooked the positions of the Army of Bosnia and Herzegovina - the ABiH - , thus providing the SRK with strategic points around the city. The evidence shows that during that 15-month period the SRK, from commanding positions on the hills of Sarajevo, carried out a campaign of sniping and shelling that resulted in injury to and death of a great number of civilians in the city of Sarajevo. . . .

[T]he Accused's position as commander of the SRK obligated him to prevent the commission of crimes and to ensure that the troops under his command conducted themselves with respect for international humanitarian law. However, the evidence presented to the Trial Chamber shows that the Accused abused his position and that he, through his orders, planned and ordered gross and systematic violations of international humanitarian law. Moreover, the Accused made regular use of a highly inaccurate weapon with great explosive power: the modified air bomb. It is clear from the evidence that the SRK well know that these weapons were indiscriminate and inaccurate. The modified air bombs could only be directed at a general area, making it impossible to predict where they would strike. Each time a modified air bomb was launched, the Accused was playing with the lives of the civilians in Sarajevo.

The defense's main argument, which was rejected by the court, was that Sarajevo could not be considered a civilian area; Sarajevo was, instead, the defense claimed, a theater of serious conflict and heavy fighting and so the Bosnian Serb Army's acts were necessary and legitimate. The Trial Chamber sentenced Milošević to thirty-three years' imprisonment.

Workshop: Articles on State Responsibility and Investment Arbitration

The Investment Treaty Forum of the British Institute of International and Comparative Law will host a discussion today on the Articles on State Responsibility and Investment Arbitration at the BIICL. Speakers include Zachary Douglas (Matrix Chambers) and Simon Olleson (Thirteen Old Square). Simon Nesbitt (Lovells LLP) will comment, and James Crawford (Univ. of Cambridge & Matrix Chambers) will preside. The preliminary draft of the BIICL's research project on the "Impact of the International Law Commission's Articles on Responsibility of States for Internationally Wrongful Acts" (drafted by Simon Olleson) is available here. Here's a description of the event:

The Articles on Responsibility of States for Internationally Wrongful Acts, adopted by the International Law Commission in 2001, have had a profound impact on international dispute settlement generally and investor-State arbitrations in particular. The speakers will explore a number of issues concerning the treatment of the Articles by arbitral tribunals, including the general applicability of the Articles in investment disputes, and the use made by tribunals of specific provisions of the Articles, including the rules on attribution of conduct to the State. Comments will also be made as to the recent UN General Assembly debate on the eventual fate of the Articles.

ICTY/ICTR: Joint Completion Strategy Briefing of the Security Council

Yesterday, December 10, the Presidents and Prosecutors of the ICTY and the ICTR briefed the Security Council on their respective completion strategies, pursuant to resolution 1534 (2004). ICTY President Fausto Pocar's statement is here; ICTY Prosecutor Carla Del Ponte's statement (her final one, as her term ends with the year) is here; ICTR President Dennis Byron's statement is here; ICTR Prosecutor Hassan Jallow's statement is not yet available online. A New York Times story, focusing on Del Ponte's criticism of Serbia's cooperation with the Tribunal, is here. The UN's read-out of the meeting is here. The latest completion strategy reports have been issued as UN documents S/2007/676 (ICTR) and S/2007/663 (ICTY).

New Issue: International Arbitration Law Review

The latest issue of the International Arbitration Law Review (Vol. 10, no. 5, October 2007) is out. Contents include:

• Martin Illmer & Ingrid Naumman, Yet Another Blow - Anti-Suit Injunctions in Support of Arbitration Agreements within the European Union
• William Godwin, Challenging Awards in China-Sited Arbitrations
• Paula Hodges, The Relevance of Article 6 of the European Convention on Human Rights in the Context of Arbitration Proceedings
• Max Bonnell, The Trade Practices Act: Australia's International Arbitration Headache

New Issue: Nordic Journal of International Law

The latest issue of the Nordic Journal of International Law (Vol. 76 , no. 4, 2007) is out. Contents include:

• Michael Fremuth & Jörn Griebel, On the Security Council as a Legislator: A Blessing or a Curse for the International Community?
• William K. Barth, Minority Rights, Multiculturalism and the Roma of Europe
• Andrew L. Mollel, Judicial Settlement of Armed Conflicts in International Law: Reflecting the 2005 International Court of Justice Decision in the Democratic Republic of Congo
• Hans Morten Haugen, The Nature of Social Human Rights Treaties and Standard-Setting WTO Treaties: A Question of Hierarchy?
• Bjørn Kunoy, A New Arctic Conquest: The Arctic Outer Continental Margin

Bellamy, et al.: Security and the War on Terror

Alex J. Bellamy (Univ. of Queensland - Political Science & International Studies), Roland Bleiker (Univ. of Queensland - Political Science & International Studies), Sara E. Davies (Queensland Univ. of Technology - Justice), Richard Devetak (Univ. of Queensland - Political Science & International Studies) have published Security and the War on Terror (Routledge 2008). Here's the abstract:

The terrorist attacks of 11 September 2001 undoubtedly marked a key turning point in international politics. 9/11 represents a different type of threat, one that cannot easily be anticipated or prevented, through prevailing state-based structures of security alone. A fundamental paradox emerges: while security threats have changed significantly, our means of understanding and responding to them remain largely unchanged. The ensuing challenge constitutes the central theme for this book: How can we assess the origin, meaning and implication of a major historic turning point, such as 9/11, if the prevailing conceptual means and policy responses are inadequate for providing enhanced security?

The main contribution of this volume is therefore to provide new dimensions in the debate on global terrorism by opening up interdisciplinary conversations between strategic, economic, ethical and legal approaches, which offer important and practically relevant opportunities to rethink how states can respond to terrorist threats. The contributors included offer a unique combination, from leading conceptual theorists and policy oriented analysts, and from senior academics to up-and-coming researchers. By bringing together these diverse sets of inquiry into the context of a well-defined common research agenda, the present book seeks to recognize a fundamental issue linked to terrorism: while major crises initially tend to reinforce old thinking and behavioral patterns, they also allow societies to challenge and overcome entrenched habits, thereby creating the foundations for a new and perhaps more peaceful future. Major traumas have, indeed, always played a central role in redefining political communities. Questioning the key assumptions that guide security thinking should therefore be an essential element of coming to terms with 9/11. And it should entail fundamental discussions about the nature and meaning of security in a rapidly changing world - discussions that include the use of a range of hitherto neglected sources of insight, such as those between political, economic, legal and ethical factors.

Contents include:

• Alex J. Bellamy & Roland Bleiker, Introduction
• Paul D. Williams, Security Studies, 9/11 and the Long War on Terror
• Anthony Burke, Cause and Effect in the War on Terror
• Katrina Lee-Koo, 'War on Terror'/'War on Women': Critical Feminist Perspectives
• Emma Hutchison & Roland Bleiker, Emotions in the War on Terror
• Sara E. Davies, International Law and the State of Exception
• Cian O’Driscoll, New Thinking in the Just War Tradition: Theorizing the War on Terror
• Alex J. Bellamy, Pre-Empting Terror
• Richard Devetak, Failures, Rogues and Terrorists: States of Exception and the North/South Divide
• Christian Enemark, US Bioterrorism Policy
• Hugh Smith, Intelligence and Ethics in the Age of Terror
• Jason Sharman, The International Campaign to Combat the Financing of Terrorism
• Sara E. Davies and Richard Devetak, Conclusion

New Issue: Journal of World Trade

The latest issue of the Journal of World Trade (Vol. 41, no. 6, December 2007) is out. Contents include:

• Gail E. Evans, Substantive Trademark Law Harmonization by Means of the WTO Appellate Body and the European Court of Justice: The Case of Trade Name Protection
• Won W. Koo & Ihn H. Uhm, Effects of Dumping vs. Anti-dumping Measures: The US Trade Remedy Laws Applied to Wheat Imports from Canada
• Katsuri Das, GATS 2000 Negotiations and India: Evolution and State of Play
• Sherzod Shadikhojaev & Nohyoung Park, Cessation and Reparation in the GATT/WTO Legal System: A View from the Law of State Responsibility
• Erland Herfindahl & Richard W. Brown, WTO Negotiation in Financial Services: Standing Offers Disappoint
• Sun Liang, & Zhang Xiangchen, Redefining Development, Reimagining Globalization: The WTO and China's New Economic Vision
• Donald H. Regan, A Gambling Paradox: Why an Origin-Neutral 'Zero-Quota' is Not a Quota Under GATS Article XVI

Schabas: An Introduction to the International Criminal Court

William A. Schabas (National Univ. of Ireland, Galway - Irish Centre for Human Rights) has published the third edition of An Introduction to the International Criminal Court (Cambridge Univ. Press 2007). Here's the abstract:

The International Criminal Court has ushered in a new era in the protection of human rights. Protecting against genocide, crimes against humanity and war crimes, the Court acts when national justice systems are unwilling or unable to do so. This third edition of this seminal text on the Court considers it in action: its initial rulings by the Pre-Trial Chambers and the Appeals Chamber and those cases it is prosecuting as well as those where it had decided not to proceed, such as Iraq. It also explores the law of the Court up to and including its ruling on a confirmation hearing. It addresses the political context of the court, such as the difficulties created by US opposition and the increasing recognition of the inevitability of the institution. Written by the leading expert in the field, this text is essential reading for any student of the Court and its workings.

New Issue: Journal of International Economic Law

The latest issue of the Journal of International Economic Law (Vol. 10, no. 4, December 2007) is out. Contents include:

• Eric H. Leroux, Eleven Years of GATS Case Law: What Have We Learned?
• Andrew D. Mitchell, The Legal Basis for Using Principles in WTO Disputes
• Junji Nakagawa, No More Negotiated Deals?: Settlement of Trade and Investment Disputes in East Asia
• Lorand Bartels, The WTO Legality of the EU's GSP+ Arrangement
• Wang Ping, Coverage of the WTO's Agreement on Government Procurement: Challenges of Integrating China and other Countries with a Large State Sector into the Global Trading System
• Frederick M. Abbott & Jerome H. Reichman, The Doha Round's Public Health Legacy: Strategies for the Production and Diffusion of Patented Medicines under the Amended TRIPS Provisions
• Lawrence O. Gostin, A Proposal for a Framework Convention on Global Health

Dembour & Kelly: Paths to International Justice: Social and Legal Perspectives

Marie-Bénédicte Dembour (Univ. of Sussex - Law) & Tobias Kelly (Univ. of Edinburgh - Social Anthropology) have published Paths to International Justice: Social and Legal Perspectives (Cambridge Univ. Press 2007). Here's the abstract:

This volume focuses on the everyday social relationships through which international justice is produced. Using case studies from the International Criminal Court, the European Court of Human Rights, the UN Women's Convention Committee and elsewhere, it explores international justice as a process that takes place at the intersection of the often contradictory practices of applicants, lawyers, bureaucrats, victims, accused and others. With a sensitivity to broader institutional and political inequalities, the contributors ask how and why international justice is mobilised, understood and abandoned by concrete social actors, and to what effect. An attention to the different voices that feed into international justice is essential if we are to understand its potentials and limitations in the midst of social conflict or full blown political violence.

Contents include:

• Tobias Kelly & Marie-Bénédicte Dembour, Introduction - the social lives of international justice
• Jane K. Cowan, The success of failure? Minority supervision at the League of Nations
• Emily Haslam, Law, civil society and contested justice at the International Criminal Tribunal for Rwanda
• Jelena Tošic, Transparent broadcast? The reception of Miloševic's trial in Serbia
• Basak Çali, The limits of international justice at the European Court of Human Rights: between legal cosmopolitanism and 'a society of states'
• Kamari Maxine Clarke, Global justice, local controversies: the International Criminal Court and the sovereignty of victims
• Sally Engle Merry, Human Rights Law as a path to International Justice: the case of the women's convention
• Filippo M. Zerilli & Marie-Bénédicte Dembour, The house of ghosts: post-socialist property restitution and the European Court's rendition of human rights in Brumarescu v. Romania
• Lisa J. Laplante, Entwined paths to justice: the inter-American human rights system and the Peruvian Truth Commission
• Sal Buckler, Same old story? Gypsy understandings of the injustices of non-Gypsy justice

Crawford: Treaty and Contract in Investment Arbitration

On November 29th, James Crawford (Univ. of Cambridge - Law) delivered the 22nd Freshfields Lecture on International Arbitration. The lecture topic was "Treaty and Contract in Investment Arbitration," and the text is now available here.

Buxbaum: National Jurisdiction over Global Business Networks

Hannah Buxbaum (Indiana Univ., Bloomington - Law) delivered the Ninth Snyder Lecture at the University of Cambridge on November 1st. The lecture topic was "National Jurisdiction over Global Business Networks," and the audio is now available here.